Public Bill Committee

[Mr Christopher Chope in the Chair]

Christopher Chope: This morning, points of order were made about the use of hand-held electronic devices in Committee. The hon. Member for Birmingham, Selly Oak was particularly concerned about it. I underline the ruling made by the Chair this morning that the overriding principle must be that the use of such electronic devices in Committee must not disrupt the proceedings. As for whether it is in order for an hon. Member to post on Twitter during proceedings in Committee, and thereby comment on proceedings in Committee, it is my understanding that that is in order as long as it does not involve criticising the Chair.

Clause 141

Amendment moved (this day): 625, in clause 141, page 96, line 1, leave out ‘mattress’ and insert
‘sheet, blanket, duvet, pillow, mattress, cardboard, plastic, foam’.—(Steve McCabe.)

Stephen McCabe: It is a pleasure, as always, to serve under your chairmanship, Mr Chope. Just before the break, the Minister for Policing and Criminal Justice was trying to establish whether my comments about the various things that I had observed in the juvenile court by way of excuses and explanations was something to do with my misspent youth. I was eager to assure him that it was in the context of my work with young offenders.
However, I am anxious to establish from the Minister whether he is confident that the current wording of the Bill will be sufficient to prevent those with an ingenious desire to evade his best intentions from arriving at the square or a similar location with equipment that could be used for the purpose, but that might not strictly meet the definition. We have been through such matters to a large extent, and I tabled the amendment simply as a probing exercise so that we could hear the Minister’s reasoning and seek his assurances that the clause will do the job.

Vernon Coaker: Good afternoon to you, Mr Chope, and to all members of the Committee. This morning, we had what I thought was yet again a good debate about a series of clauses and amendments on what was meant by different parts of the Bill, and about the general principles of protest and the balance between legitimate protest and the right of the general public to have free and proper access to Parliament. As my hon. Friend the Member for Birmingham, Selly Oak said, the amendment is designed to tease out what the Government mean.
On the face of it, the amendment seems almost trivial and silly, first because my hon. Friend the Member for Birmingham, Selly Oak tabled it and, secondly, because such matters are exactly where the previous Government often reached. Furthermore, with respect, for all his good intentions, the Minister absolutely needs to nail down such issues. If he does not, we will see individual protesters or groups using loopholes—unintended as they may be—to drive a coach and horses through the Government’s legislation. As we said this morning, we support the repeal of the Serious Organised Crime and Police Act 2005 provisions and the Government’s intention to do something about the permanent encampment outside, but we are determined to try to ensure that the legislation is as watertight as possible.
On defining what we mean by sleeping equipment, I suggest the Minister needs to get his lawyers and officials to go through the Bill again and again and look at it from the point of view of somebody who is trying to usurp what the Government are doing, or somebody who is trying to circumnavigate the intention of Parliament, the Minister and us. It is no good people getting defensive about it. People simply have to ask, “If you were trying to undermine the intention of the Bill, what would you do?” It is the point about sleeping equipment that we need to get to. The Minister and his officials would say that sleeping equipment
“means any sleeping bag, mattress”.
The catch-all is “or other similar item”, and the other similar item is designed to catch anything else
“(solely or mainly) for the purpose of facilitating sleeping in a place.”
The purpose of my hon. Friend’s amendment is to probe what that includes. The problem is that we cannot make an exhaustive list. As soon as we try to make such a list, we miss something out and somebody will turn up with something that is not on the list, so we have to have a catch-all. Presumably, I could turn up with a pair of pyjamas, a nightdress or five or six pairs of pyjamas in which to sleep on the pavement. I ask for the Committee’s forbearance, because, although it sounds as though I am joking, I am not. I cannot emphasise enough that that is what will happen. Unless we are absolutely clear and try to put some meat on the bones of what “or other similar items” means, we will have a problem.
Westminster city council raised a point about sleeping equipment. Obviously, sleeping equipment could be pyjamas or hot-water bottles. Someone could come along with 10 hot-water bottles to keep themselves warm, but let us suppose someone says, “I have a tent that is not for sleeping in but for storage”, or, “The structure I have put up is not for sleeping in but for storage.” We debated questions relating to the police and authorised officers this morning. They will be left trying to determine whether the structure is for sleeping or storage. We have police officers on our side of the road, but the structures will have to be permanently guarded to ensure that someone is not nipping in for an hour’s sleep. I am not trivialising the debate. It really is that important.
The Minister gave an important clarification this morning on the point that somebody can stay overnight and protest. The simple little amendment tabled by my hon. Friend the Member for Birmingham, Selly Oak could be repeated numerous times throughout the clause and throughout the Bill. We want the Minister to identify and define all those different things and try to lock the matter down.

Stephen McCabe: Like my hon. Friend, I have been exercised over how easy it would be to evade the measures. We have had repeated experience of at least one individual being able to do exactly that. Is it clear from the wording of the clause that an individual in possession of equipment that might be thought to be for the purposes of sleeping would have to prove that the equipment was for them? If they carried it for someone else would that be grounds for evading the direction of the officer?

Vernon Coaker: I am not sure, but I do not think so. Again, the Minister will provide clarification, but we do get into problems. What about people who just walk through the square carrying such equipment? He will presumably say that the matter is at the discretion of the officer, who does not have to do anything, but may do something. It will be interesting to hear what the Minister says.
I do not want to add to those few comments; they relate to our debate this morning about other aspects of the Bill, and to debates that we will have on subsequent clauses. The matter is of much significance. As we said this morning, many people—I spoke to a couple during the break today—are exercised about the permanent encampment outside. From my straw poll, its permanency is the issue. There is concern or scepticism: “I bet they’ll find a way round it, if you are not careful.” All members of the Committee are genuinely concerned and worried about that. I would appreciate hearing the Minister’s comments on the amendment.

James Brokenshire: I thank hon. Members for the way in which they have highlighted their points, and their desire to ensure that the provisions meet the expectations not only of the Government and the Committee, but of the whole House and the public.
I say to the hon. Member for Birmingham, Selly Oak, that we have looked very hard at the provisions, as he would expect me to do when preparing the Bill. The sort of questions posed by him and the hon. Member for Gedling are those that I put to officials, as we considered the drafting and preparation of the Bill. We know that the provisions will certainly be subject to legal challenge; as night follows day, they will be challenged, so we have to be as satisfied as we can be about their drafting and their effect.
I accept what the hon. Member for Gedling said about exhaustive lists creating further problems. By creating such a list, we narrow the interpretative wording, so we should examine that proposal carefully. There are similar provisions in the clause, and subsection (7) is intended to operate in that way. On whether the provision is intended for a person, I draw the attention of Members to subsection (2)(d), which is not specific to the person concerned. Subsection (2)(d) is also intended to ensure that storage and such issues are equally captured, which reflects a comment that I made when we considered the drafting and preparation of the Bill.
I hear loud and clear the fair comments and points made by both speakers in this mini-debate. I assure the Committee that I will keep on kicking the tyres, testing the measure and seeing whether further questions come to my mind in the context not only of these provisions, but of others as we move through the Bill. I am satisfied that its provisions address the specific points raised by the hon. Member for Birmingham, Selly Oak, in his amendment, by virtue of the drafting of subsection (7). However, I will not rest on my laurels. The Government will keep the matter under close observation to see whether we can identify other circumstances that have not yet been addressed, but so far we have been focused in our approach and have gone through the Bill in some detail.
With that assurance, I hope that the hon. Gentleman will be minded to withdraw what I know is a probing amendment. It was intended to be helpful, for which I am grateful to him.

Stephen McCabe: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Vernon Coaker: I have a question on the clause that needs to be clarified. This morning the Minister helpfully said that overnight protests will be allowed under the Bill. We do not want protests to be permanent, but could “permanent” mean two, three, four, five or six nights? The Minister recognises the problem. That is not to say that I could turn around and say what “permanent” means, but I am pleased that the Minister has clarified that overnight protests are allowed.
Clause 141(2)(e) states that
“using any sleeping equipment in the controlled area of Parliament Square for the purpose of sleeping overnight in that area”
is a prohibited activity. Is it possible, however, to sleep there overnight? Let us say that I am protesting outside Parliament, and I do not have any sleeping equipment—a tent, a structure, pyjamas, a hot water battle—

Chris Ruane: A nightgown.

Vernon Coaker: A nightgown or a nightcap. If I do not have any of those items, can I just lie down on a pavement in a jacket?

James Brokenshire: I think the answer is yes.

Vernon Coaker: That is very helpful to know.
We have said that we are not trying to bring the law down to an individual level—it is about two or more people. If 15 individuals protesting outside Parliament overnight for an unspecific period—we are unsure what “permanent” means—lie down on the pavement and go to sleep, there is no power under the Bill to require them to leave. If one goes dressed in lots of clothes, for example in winter, that would be fine. They would be able to put a raincoat on, put a hood over their head and stay there for a period of time.
I raise this matter only because if we get 15, 20 or 25 individuals—not coming together as a group, because they would be silly to do that—on 15 different individual protests, they will be able to sleep overnight on the pavement, change their clothes in the morning and come back with a clean set of clothes. They will do that, because the provisions are about two or more people. Presumably, they can also sit on a chair and sleep in it, unless the chair is sleeping equipment, and I suppose it depends on what type of chair it is.
I am deliberately dancing on the head of a pin. I am trying to find fault in the Bill, simply to show how those outside who seek to usurp our intentions will find a way around the proposals. I am not wasting the Committee’s time. [Interruption.] The hon. Member for Northampton North has nodded because he knows, from his professional and legal experience, how people will try to do that. I think the Minister said that would be obstruction, but we have already seen the problem with obstruction: the judge ruled that Brian Haw and others could stay on that side of the road as it was not a thoroughfare or pavement with lots of people walking by. I therefore seek clarification more than anything else.

Julian Huppert: I thank the hon. Member for Gedling for highlighting an aspect of the Bill that I agree with completely. That is helpful to know and I was reassured by the Minister’s brief intervention.
On page 96, subsection (8) refers to
“a fine not exceeding level 5 on the standard scale”.
My understanding was that the aim was to replicate, as far as possible, the Public Order Act 1986, where I believe that the fine—I am not an expert in this, I hasten to add—for breaching directions is on level 3, which I believe is a £1,000 rather than a £5,000 fine. Will the Minister say why he went for this option rather than the other? I will happily talk for a bit longer if that would help him in answering, but if he knows the answer, that is fantastic.

James Brokenshire: I thank the hon. Member for Gedling for his approach to the matter. He will know from our debates and discussions over the years that I take getting the language right seriously. Having been a lawyer before entering the House, I know how important and significant these issues can be. [Interruption.] There was some booing and hissing there, and I will not take it personally—I am certainly not charging for this on the meter—but I do take the issues that the hon. Gentleman has highlighted seriously, because they concern language, interpretation and the manner in which others would seek to challenge and exploit the provisions.
We have been quite careful in drafting clause 141, which is intended not to stop overnight protest but as a remedy to the actions of those who wish to create tents, structures and other such arrangements. I accept that the clause is in some ways drafted quite broadly, and, as I said this morning, an element of discretion needs to be applied in its use. Given some of the issues that we have seen in the past, that is the better approach. A memorandum of understanding and guidance will sit alongside the provision, to give direction and certainty to the police in its application while ensuring an element of discretion and flexibility. As discussed in our previous debate about exhaustive lists, the manner in which provisions are drafted can sometimes cause problems.
On the point that the hon. Gentleman highlighted, we do not seek to stop overnight protest. Obviously, there are provisions that relate to certain parts of the highway being obstructed by crowds of people—for instance, blocking Carriage Gates—and those provisions are a direct remedy available in such circumstances. Again, we are seeking not to stop protest—I will return to this distinction on a regular basis—but to remedy arrangements such as overnight encampments. To address that underlying point, it is necessary to tie the definitions into that intent.
My hon. Friend the Member for Cambridge raised the issue of the level of fine. As the offence is quite targeted and focused, we felt that it needed an appropriate penalty and considered that, for an effective deterrent, the relevant mischief was at level 5 rather than level 3. I think that is the right approach, and I hope that setting it at that level will command the support of the Committee and the House. I note my hon. Friend’s point, although under the Act to which he refers, there are further sanctions—the penalty can go up, I believe, to three months’ imprisonment. Although the fine may be set at that level, we seek to create a different type of structure.

Vernon Coaker: Is the fine an “up to”, rather than a set amount?

James Brokenshire: Yes, it is. It gives the court clear discretion in analysing the circumstances of the individual when setting the level of the fine. I hope that, with those comments, the Committee will be minded to accept that clause 141 stand part of the Bill.

Question put and agreed to.

Clause 141 accordingly ordered to stand part of the Bill.

Clause 142

Question proposed, That the clause stand part of the Bill.

Vernon Coaker: I have several questions for the Minister about the directions and further provision. The clause is significant because it gives effect to clause 141 and provides more power for the constable or the authorised officer to do more things, not only when a person is actually doing something, but before the person starts doing something. There needs to be clarity about how that will be determined. Will it be a matter for the individual constable or authorised officer to determine, and to say, “We believe that the person will actually do that, so we need to do something”? If that is so, it takes me to subsection (6) under which a direction can be given orally to two or more people or may be withdrawn or varied. Will the Minister explain to the Committee a little more about what that process entails?
The Minister for Policing and Criminal Justice and I had an interesting discussion recently about stop and search, stop and account and some of the changes in respect of that. The direction can be given orally, so does that mean that no record will be taken of what happens? I could give an oral direction to someone to stop doing something or to leave the area. Do I have to record that action? I do not understand what process will be used under the Bill. Clearly, such action matters. If I had given the direction orally, but then want to vary it, how will I have a proper record of what I am varying? The process will be done by memory. What will I be varying if I had not written it down? Matters will be haphazard if it were just a case of remembering what I had said to someone, especially if it was to more than one person. A direction can be given to “two or more persons”, so it could be given to a group of people. It had to be given orally, so there is a need for it to be recorded, particularly if the matter goes to court.
If the matter goes to court, presumably it is not the case that the constable or authorised person can turn up and say their recollection was that they gave a certain direction. Is it? [Interruption.] If it is, I am amazed that someone can be taken to court just on the basis of a recollection of someone’s memory. I know that we are all against bureaucracy but, if I had been directed by a police officer to move somewhere and I was taken to court for it, I would expect a little more than just, “Oh well, I think I said, ‘dah-di-dah’”. To be honest, the police and officers would expect a little more rigour in the process than that.
I want the Minister to spend a little time explaining the process. Will he explain the recording of the direction? Is it ever in writing? What happens when it goes to court? What happens if a complaint is made about it? If we are not careful, it will be a human rights nightmare. If the direction was given orally and someone believed there was a problem, how will the person receive redress if it were such an oral direction? Let us suppose that the person considered that the constable or authorised officer had gone over the top with respect to their powers under the Bill, and actually accuses the constable or authorised officer of giving them a direction that was over and above their powers? If the process was not recorded or written down, how can the person seek redress? I should be interested in replies to those questions.
I have a couple of other points. Will the Minister explain how the period of 90 days was arrived at? I accept that the clause refers to a time of up to 90 days and that it does not have to be a period of 90 days, but is that just an accepted period for such action or does some guidance arrive at it? Can the period of 90 days be repeated? If a person reaches a period of 89 days, can he go to court for a further 90 days. Can the period of 90 days be repeated, in a sense? In effect, the directions could apply to an unlimited period.
Will the Minister explain how the condition under subsection (5) relates to subsection (4)? The constable or authorised officer can give someone a direction to cease operating amplified noise equipment, if someone else can hear it. I would have thought that that was blindingly obvious. [Interruption.] With that, I shall sit down at the bell and wait for the hon. Gentleman’s response.

Sitting suspended for a Division in the House.

On resuming—

Julian Huppert: I wanted to follow on from the comments about clause 142(1) and the way in which a further power might work. It is clear why one would need a power to say that a direction requiring someone to stop an activity does not simply allow them to do it again immediately or as soon as the person giving the direction wanders off. We can all agree on that. My question is what is a reasonable length of time for that to continue? How will that actually work and operate? Is 90 days reasonable? Is that what somebody might expect, particularly if they are not specifically told that that is the period? The Bill does not require them to be told if it is longer than 90 days. If somebody is given an oral direction, that implies 90 days, but there is a question as to whether that is what they would expect.
I had the great privilege of discussing my concerns with the Minster earlier, and I thank him for his time and explanations. For example, I learnt that the law on trespass, which has similar provisions, specifically says that the longer time period applies to a person if they knew that that was the case. I hope I am paraphrasing the law correctly. Much of this could be dealt with by guidance. I can see why an oral direction is needed. It is better to have things in writing, but I understand that if there is a group of 50 or 60 people, it would simply not make sense for a police officer to go round saying, “Hang on, I’ve just got to write all this stuff down for each and every one of you.” I take the point that we need a quick way of saying, “Stop this and do not do it again.” Perhaps guidance would help, and perhaps the Minister will be able to comment on whether—for example, if it is to last for 90 days—best efforts will be made to provide a written record. If an oral direction is given to a group of people, perhaps it would not be for longer than a particular time period. Something like that would allow an individual case to be dealt with for a long time period, but it does not give rise to the problems that the hon. Member for Gedling and I have touched on.
Will the Minister say a little more about withdrawal and variance in subsection 6(c) and how that would work? How would the person be informed? There is another issue, which I am sure would not come up. It could be dealt with by guidance, and I would be grateful for reassurance on that. If a written direction were given, could that then be varied orally? That would not be a sensible thing to do, but clarification would be helpful. We must also consider how the direction is given—whether it is recorded and how it is recorded by the person giving the direction. Again, that can be dealt with in terms of process, but it would be helpful to understand what that might be. If an officer were required to give a direction to a group of 50 people, would he at least write down the fact that he did so, so that there was a record?
I am concerned about confusion in the minds of the people who are subject to the directions. We do not want a situation in which they genuinely do not know what they are expected to do and what they are not allowed to do. I am also concerned about what would happen if it came to the courts. I suspect that someone who had been given an oral direction without any record would come back three months later and simply say, “It wasn’t me.” It would be extremely hard to show that that person was given the direction. As I have said, most of this can be dealt with in the running of the system. look forward to hearing from the Minister.

James Brokenshire: There are a couple of things to consider: the interpretative points and the practical issues. It is worth my highlighting what triggers the offence. Clause 141(8) states:
“A person who fails without reasonable excuse to comply with a direction under subsection (1) commits an offence”.
That is the point at which the court becomes engaged. The direction is given under clause 142, and it is only when that direction is breached that it becomes a criminal offence, and it is for the courts to determine whether an offence has taken place. It is important to draw that point to the Committee’s attention, such that if someone did not appreciate the duration of the direction, or if they had not been properly informed of it, they might be able to argue, “It was a reasonable excuse, because I was not properly told of the duration of the direction that I was supposed to comply with.”
These provisions are intended to work together. If a failure to adhere to a direction were to go to court, it would need to be shown on a criminal standard that someone had failed without reasonable excuse to comply with the relevant direction. There are evidential issues to consider. A police officer may well be able to record in his or her notebook what was said, and that may be evidentially sufficient, but we are seeking to provide further guidance to sit alongside the Bill to address the practical issues that may arise in those circumstances.

Vernon Coaker: Will the guidance be statutory, or will it just be some notes that sit alongside the Bill?

James Brokenshire: It is intended to be non-statutory guidance, because it deals with the very practical relationship between Westminster city council, the Greater London authority and the Metropolitan police. It is intended to be helpful, rather than sort of statutory code, which may be more problematic, because people would begin to interpret it. It will be more beneficial to those involved, given that we are talking about practical circumstances, to have that in the form of non-statutory guidance.
Subsections (1) and (2) provide that a direction to stop a prohibited activity may include that a requirement that a person
“does not start doing that activity again”.
The direction continues in force for a period of time
“specified by the constable or authorised officer giving the direction”.
Where a period is not specified, subsection (2) provides that the direction may remain in force for up to 90 days from the date of the direction being given. We consider that it is reasonable to have a limit requiring the authorised officer or constable to renew the direction every three months. That is consistent with other areas of law that have direction powers.
This measure has not just been created for the Bill, and it has parallels with directions to leave land under section 69 of the Criminal Justice and Public Order Act 1994, for example. Without a limit, it would be unclear to the person directed not to start a prohibited activity at what point a direction ceased to apply. We therefore think that 90 days strikes the right balance.
Clause 142 also provides for directions to be given orally, either to
“a person individually or to two or more persons together”.
That is to provide flexibility for constables and authorised officers and to not restrict them to giving written directions in every case. We anticipate a constable or authorised officer giving a direction orally in a scenario where a person was unaware that they were doing a prohibited activity and then complied with a direction to stop doing it without further ado. Where a direction is given that is to remain in force for a longer period of time, we would expect the constable or authorised officer to provide it in writing to that person.
Clause 142 also sets out the limit on a direction that can be given to a person to cease operating or not to start operating any amplified noise equipment. The condition under subsection (5) is that the person is operating equipment, or is about to do so, in such a way as to produce sound that others in, or in the vicinity of, the controlled area of Parliament square can, or are likely to be able to, hear. The purpose of the measure is to ensure that a person is not directed to stop using some other device in the controlled area that is unlikely to be heard by others. I appreciate what the hon. Member for Gedling has said about that being obvious, but as he well knows, in this arena, the things that we think are obvious may not be, so there is a danger of leaving matters open to interpretation.
Again, the point is to road-test the measure to check out all the possible permutations that may apply in such circumstances. We do, however, want a constable or authorised officer to be able to direct a person who uses a loud radio on Parliament square to the disturbance of others to stop doing so.

Vernon Coaker: I thought that we were talking about amplified equipment; does the Minister mean an ordinary, loud radio?

James Brokenshire: I repeat that some equipment may be very large and very loud, which might be construed as amplification. We seek to cover off such interpretations.

Vernon Coaker: The powers under the clause relate to amplified noise equipment, not to a big radio that is loud.

James Brokenshire: That can be noise amplification. I appreciate the hon. Gentleman is probing the issue, but we are seeking to ensure that the powers are effective, and we want to cover off the examples that he highlighted and which demonstrate how such powers can be tested.
As we have said all along, the Government are concerned about those members of the public who want to enjoy Parliament Square gardens peacefully; who wish to demonstrate or protest, whether or not they are using a loudhailer; or who wish to go about their lawful business without disturbance, including Members of Parliament. We have considered the provisions closely and carefully, and we think that they strike the right balance.

Julian Huppert: Will the Minister clarify a couple of points? He has discussed renewing the 90-day period, but I cannot see a provision for doing so unless somebody tries to break the rules again. If no information is given and a shorter time than 90 days is allowed, will he also consider the maximum of 90 days still being available for written options?

James Brokenshire: We need to be careful about prescribing measures too closely in statute. My hon. Friend highlighted the issue of whether we could seek a further 90 days for a direction. Clause 141 refers to constables or authorised officers who have
“reasonable grounds for believing that a person is…about to do”
something. If they have such a belief, they will be able to provide a further direction. They might be dealing with someone about whom they have reasonable belief because of their behaviour pattern, and they will be able to issue a further direction in such circumstances. With that assurance, I hope that hon. Members will accept the clause.

Question put and agreed to.

Clause 142 accordingly ordered to stand part of the Bill.

Clause 143

Question proposed, That the clause stand part of the Bill.

Vernon Coaker: As we have said all along, we support the repeal of SOCPA and we are simply trying to ensure that the Government’s provisions are workable. Some of these issues will be discussed again on Report and beyond.
May I ask the Minister a couple of points about the clause? First, subsection (2) mentions
“any land outside of the controlled area of Parliament Square”.
Does that literally refer to anywhere in the country? Secondly, he will know that subsection (4) is controversial. We had a long debate about the use of reasonable force this morning, so I do not want to go over that again.
The Minister will know that Assistant Commissioner Owens, in the evidence that she gave to the Committee and in further evidence that she has submitted, raised concerns about extending the law. She made a point that I do not properly understand—I wonder whether the Minister might be able to respond to it or obtain some details—and said:
“The MPS foresee that the use of powers under this section will be subject to legal challenge (e.g. under s59 Criminal Justice and Police Act 2001).”
Will the Minister explain that? Clause 143 (6) states that any
“item may be returned to any other person appearing to have rights in the property”.
A property that has been seized can be returned to someone who comes forward to claim it, because they appear to have rights. If I may say so, and I am no expert on this, that that needs to be looked at, because a provision for someone coming forward and “appearing to have rights” does not have the strength that we would all want it to have. The police have stated:
“Clause 143(6) fails to address the position where the name and address are known but they are refusing or are unable to accept delivery of the property.”
What comments does the Minister have about those points on the clause?

James Brokenshire: Subsection (2) states:
“A constable may seize and retain a prohibited item that is on any land outside of the controlled area of Parliament Square if it appears to the constable that the item has been used in connection with the commission of an offence”.
We have not sought to delineate the area, but are seeking to satisfy the requirement that it would need to be shown that the item had been used in connection with an offence, which will be a matter of evidence and proof. The hon. Member for Gedling said that that might be anywhere in the country, but I suggest that if that area is not proximate or if there is no other evidence suggesting otherwise, it would be hard to make use of subsection (2), although I hear his point.
On the hon. Gentleman’s more general points about subsection (6) and the return of property, guidance will be issued to sit alongside the Bill. I assure him that we are continuing to discuss the issues and provisions with the Metropolitan police, Westminster city council and the GLA to ensure that those concerns are positively addressed. I sought to do so in my most recent meeting with Westminster city council, and through my contact with the Metropolitan police, and I very much seek to continue that engagement.
The hon. Gentleman raised section 59 of the Criminal Justice and Police Act 2001, and the reference in evidence submitted to the Committee to a provision about giving back seized property. Perhaps Lynne Owens was trying to draw parallels with the Bill. Clearly, we want to learn from past experience, and we expect the provisions to be challenged, as I have said, as has consistently been the case over Parliament square. I can assure the hon. Gentleman that we will continue to have a dialogue with the police and other agencies to ensure that if there are points that have not been addressed fully or need to be clarified, they will be dealt with either in guidance or in other appropriate ways. We do not have a closed mind on the matter. We want to learn from the experience and we are certainly continuing to listen.

Question put and agreed to.

Clause 143 accordingly ordered to stand part of the Bill.

Clause 144

Question proposed, That the clause stand part of the Bill.

Vernon Coaker: I should like to reiterate a number of points that the Metropolitan Police Service has made on the clause, and mention an issue that I am concerned about, which I will ask the Minister to comment on.
Assistant Commissioner Lynne Owens made the following point:
“The Bill provides for a court making an order prohibiting a person from entering or engaging in an activity in Parliament Square…such measures result in supporters or sympathisers taking the place of the person subject to such an order”.
In other words, we get a rotating protest, with people just moving around. She says:
“It is not clear what the consequences of breaching such a court order would be, or how the matter would be brought back before the court for enforcement.”
I would like the Minister’s comments on that.
I am concerned about subsection (2), which says:
“An order under subsection (1)(b) may (in particular)”—
this is emphasised—
“require P”,
the convicted person,
“not to enter the controlled area of Parliament Square for such period as may be specified in the order.”
How long might that period be? Presumably “the order” is that of the court, but do the courts have any general guidance on the sorts of periods of time that might be specified in the order? We are giving the court quite a serious power. We are effectively allowing it to exclude an individual from an area of protest for quite a significant period. It is not that they cannot sleep there or be there permanently; we are excluding them from an area. That is almost like a curfew.

Michael Ellis: Is it not more like an injunction, although the order is more difficult to obtain? Whereas an injunction in the civil courts can be obtained on the balance of probabilities—that is potentially what Westminster city council is trying to do—a court order would be imposed post-conviction, so a matter would have been proved beyond reasonable doubt before the order could apply. Is that not safer than a civil remedy?

Vernon Coaker: That is certainly true, but the point to which I am drawing the Committee’s attention is that we are extending the power of the court to apply to the policing of a protest outside Parliament. The hon. Gentleman is obviously correct; he will know better than I do that he is correct. I am asking whether the response is proportionate. I know that the argument will be, “Well, it’s a matter for the court; the court will determine whether it is proportionate on the basis of the evidence” and so on, but the courts interpret and use the powers that we give them. We are giving them the power to prohibit someone, for an unspecified period, from going to a part of the country, namely Parliament square, to protest. That is quite a serious position.
The hon. Member for Cambridge and his colleagues have talked long and hard about the Protection of Freedoms Bill that was published last Friday. However, tucked away within the Policing Reform and Social Responsibility Bill, there are certain things that run a little counter to some of the measures in the Protection of Freedoms Bill. Extending the power of a court to operate an exclusion zone in a protest is a significant extension of power, and that is what subsection (2) will lead to. I would be interested in the Minister’s comments on those issues.

James Brokenshire: It is worth expressing how we would get to the point where subsection (2) would apply. A direction would have been given and ignored. The matter would then come to court, and the court would have to determine a proportionate sanction.
One thing that we have learned over the past few years, during which the previous legislation was tested time and again, is how to provide a form of remedy that can address some of the relevant problems. You could just levy a fine, but if someone constantly comes back, it is right that there should be a sanction or order, limited to the very small area of land that we are talking about—the gardens and the footways around it. It would not prevent someone going to other areas around Parliament, if they sought to protest, but when there is a repeated breach of directions, and a person almost seeks to ignore the law, there must be consequences. We are not talking about some sort of summary power; it is for the courts to determine what is appropriate in clause 144(1)(b), which is why it is framed as it is.
I emphasise again that the provisions seek not to prevent protest, but to prevent someone continuing to carry out activities that are prohibited under clause 141. That is the intent behind the order-making power in clause 144(1)(b)—to provide that preventive relief, given that, sadly, experience indicates that people will try time and again to breach the terms of clause 141. We think it is appropriate for the court to have that power, when someone has been convicted—where something has been proved to the criminal standard, to mention the issues that have been highlighted—and there has been a breach of the relevant provisions. We think it is appropriate to maintain the provision, with those safeguards, for the purpose of preventing repetitive breach of clause 141.

Question put and agreed to.

Clause 144 accordingly ordered to stand part of the Bill.

Clause 145

Vernon Coaker: I would like some clarification. I have been surprised by some of the comments that have been made, but I was absolutely gobsmacked when the Minister said that a loud radio could be stopped from being used in Parliament square. Is the clause titled correctly? The title says “Authorisation for operation of amplified noise equipment”, but we have gone into other areas; the noise need not be amplified—it can come from a loud radio. If the Minister is saying that a loud radio could be stopped from being used in Parliament square, can someone apply for authorisation for that loud radio? Then you are into the question: what is a loud radio? That is about whether anybody else can hear it, which seems to me to be absurd—there is not much point in having a radio if you cannot hear it. With all due respect for the Minister’s competence, I do not think that the loud radio is the best example he has ever used.
More importantly, 21 days are required to apply for an authorisation, and that is too long. In other words, if you want to use a loudhailer or something at a demonstration, you have to make an application three weeks beforehand. It is too long a period of time. It interferes with people’s rights, and I think that the Minister has gone too far. To make sense of the legislation, there will need to be an authorisation period, but 21 days is too long. It means that somebody who decides spontaneously, in response to something that is occurring, to organise an event in a way that all of us would say was reasonable has to give three weeks’ notice. Sometimes things happen more quickly than that. What the right period should be—14 days?—I do not know, but 21 days is too long.
The permission can be withdrawn or varied at any time. Does that mean that once a demonstration has started and a loudhailer is being used, the authorisation can be withdrawn, even though it has already been authorised? Authorisation may have been given, but if it can be varied or withdrawn at any time, can the police or local authority decide to stop the use of a loudhailer, if they do not like it? Or is it the case that once authorisation has been granted and a loudhailer is being used during a demonstration, it can carry on being used? I would be grateful for the Minister’s response.

Julian Huppert: May I ask about the process for withdrawal of such an authority? I assume that it is clear, but it would be helpful to have the Minister clarify that responsible authorities should give as much notice as possible in such cases, and should give reasons wherever possible if they need to withdraw or vary an authorisation. I would be grateful if the Minister could confirm that that is what he expects. What we clearly do not want is authorities behaving in a way that is calculated to frustrate people by waiting as long as possible and then being rather unclear about their motivations.

James Brokenshire: May I first address the point, highlighted by the hon. Member for Gedling, about 21 days? There are a few issues here. First, we are talking about a very limited area in which the authorisation to use amplified noise equipment is needed. In other words, it is just the square and the surrounding footways. An authorisation scheme is there to protect competing interests in a limited space. That is an important point to start off with.
The more general point is that 21 days is a standard maximum period for local authority authorisations. Westminster currently considers many applications to use loudhailers in the current SOCPA-designated area around Parliament, which is actually a much larger area than the proposed controlled area. In determining those applications, the responsible authority may need to consult others, which can take time, and that is why we have built in the provision for 21 days. We think that that is reasonable in the context of other permissions; it is intended not to be overly restrictive or bureaucratic, but to provide a reasonable period in which such issues may be addressed.
On the issue of withdrawal or variation in subsections (7) and (8), subsection (8) relates to the point raised by my hon. Friend the Member for Cambridge; where there is any decision to withdraw an authorisation or vary a condition, notice would have to be given in writing. We would expect that to be reasonable notice—in other words, the decision should not be used as a means of trying to catch people out. That would not be an appropriate use of the powers. I hope that I have been able to give him some assurance, and I am minded to consider putting the issue in the guidance that we will publish alongside the Bill.
I hear the points that have been made. The provision is not intended to be bureaucratic or overly restrictive. I will further consider the point raised by both hon. Members about whether reasons for changes should be given, so that there will not be some sort of carte blanche, and what the relevant factors should be. I will certainly consider whether it is appropriate to set that out in the guidance. It is a fair point, and I will reflect on the points made by both hon. Members.

Vernon Coaker: It is helpful that the Minister has agreed to look at that point. That may help considerably with respect to the clause.

Question put and agreed to.

Clause 145 accordingly ordered to stand part of the Bill.

Clause 146

Stephen McCabe: I beg to move amendment 627, in clause146,page98,line40,at end insert—
The purpose of the amendment is to try to clarify what will happen when there are two authorities representing different parts of the area that we are trying to protect. History shows that it has been virtually impossible to clear protestors from the square or the pavement because different authorities have had different responsibilities and do not always seem to have been too keen to co-operate in a fashion that most of us might have thought reasonable.
I am not desperate to see the amendment included in the Bill, but I am desperate for authorities to maximise co-operation, and to ensure that we do not fall foul of the previous argument that enables one party to refuse to take any action by saying that responsibility lies with the other party. That ping-pong has been happening for the past few years. The amendment would simply give the respective authorities the power to enter into an agreement that says that one could act on behalf of the other if they were both seeking to reach the same end point. That seems sensible. As I said, I am not desperate to see this particular amendment incorporated, but I am anxious to ensure that we finally address a problem with which the Minister will be extremely familiar. The amendment is designed to be helpful in trying to raise the issue of the co-operation that will be required to ensure that, with the minimum of fuss, powers can be used by either authority, and we do not end up with unnecessary legal delays and wrangles.

James Brokenshire: I thank the hon. Gentleman for the manner in which he introduced the amendment. I certainly recognise that it would be clearer for everyone if there were one responsible authority rather than two enforcing the provisions in part 3. Agreement between the Greater London authority and Westminster city council would, as he says, remove some of the practical difficulties for enforcement authorities enforcing different controls in adjacent areas. I accept that the situation is a little odd, with part of Parliament square gardens and the footway to the back of the square being within the GLA and the footway at the front being part of Westminster city council. It simply reflects the position that we are in.
The provisions in clause 146 and in part 3 as a whole are drafted to reflect the current ownership arrangements pertaining to Parliament square gardens and the adjoining pavements. It is important that there is clarity for the public about who is responsible for issuing authorisations for amplified noise equipment, and I am not convinced that the proposed amendment provides that clarity. I respect what the hon. Gentleman has said about the issue that he raises in his amendment and about the amendment not having been finessed into a final draft, and I fully accept that.
However, should the Greater London authority and Westminster city council reach an agreement on who should be the responsible authority for the controlled area, the Government would be happy to consider introducing an amendment to reflect such an agreement. We will be working on a memorandum of understanding in relation to the utilisation of the powers under the provisions. In the light of those comments, I hope that the hon. Gentleman will be minded to withdraw his amendment.

Vernon Coaker: That is a helpful response to the amendment introduced by my hon. Friend the Member for Birmingham, Selly Oak. May I make sure that I am clear on what the Minister has just said? If Westminster city council and the Greater London authority come forward with an agreement on the responsible authority, will the Minister accept an amendment on that? Will that encompass the authorised officer part of the arrangements? I was about to raise that issue in the clause stand part debate, but may I draw it to his attention now?

James Brokenshire: Yes.

Vernon Coaker: That is very helpful. The ridiculous situation might arise in which someone had a loud radio on the pavement, but it could not be confiscated because the authorised officer was responsible for the grassed area, only 1 foot away, and was the GLA-authorised officer, not the responsible Westminster city council-authorised officer. The Minister should encourage the Greater London authority and Westminster city council to reach an arrangement so that the amendment that he might table is made a reality. Otherwise, someone 2 feet away would not be able to take action because they were not the responsible officer for that bit. Will the Minister consider whether the two bodies will come forward with such an agreement?

James Brokenshire: That is ultimately a matter for Westminster city council and the GLA, but clearly discussions will continue. For the reasons that I have outlined, having one united authorised body in such circumstances would assist matters. However, that is clearly a matter for them, rather than for me.

Stephen McCabe: In view of the Minister’s comments, I shall not press the amendment to a Division. Like my hon. Friend the Member for Gedling, I believe that it would be extremely helpful if the two parties could be encouraged to come to an agreement, and if the Minister could reflect on the matter further, with a view to amending the Bill later. I am happy to accept what he has to say, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 146 ordered to stand part of the Bill.

Clause 147 ordered to stand part of the Bill.

Clause 148

Question proposed, That the clause stand part of the Bill.

Vernon Coaker: This is a really interesting clause. I am always suspicious of miscellaneous provisions, as everyone should be. Let us suppose that the hon. Member for Gedling, and others from Westminster city council and the GLA, say that there might be a problem if people cross the road and pitch their tents. They ask the Government, who are flushed with enthusiasm about their new seizure and forfeiture powers in the preceding provisions, what they will do about it. The Government will say, “Don’t worry, the powers will apply to the byelaws of the GLA and Westminster city council and they will be able to use forfeiture and other powers to enforce them. We will give them some teeth.” That would probably be an acceptable thing to do. I am sure that the hon. Member for Cambridge has spotted this.
I then read the provisions again and realised why the Government were so flushed and excited by their extension of powers. Such powers will not apply only to Westminster city council and the GLA, but to all local authorities in England and Wales. I did not think that that could be right. Surely we cannot have a massive extension of seizure and forfeiture powers in respect of byelaws under the heading of “miscellaneous”.
I checked things out at the House of Commons Library because I was not sure that I could be right. I was told that it was right, and that clause 148 adds a new subsection to section 237 of the Local Government Act 1972 enabling local authorities to attach powers of seizure and retention of any property in connection with a breach of a byelaw relating to the prevention and suppression of nuisance. That is an absolutely incredible extension of power. I know that the Protection of Freedoms Bill has had its First Reading. The Ministry of Justice made this comment:
“Clause 148 creates a new power for byelaws to include provision for the seizure and retention of property in connection with the contravention of a byelaw and the forfeiture of that property on a person’s conviction of an offence or contravention of the byelaw. This is an extremely broad power; byelaws by their nature cover relatively minor transgressions and the exercise of coercive powers of seizure, retention or forfeiture of property will therefore frequently be disproportionate. If the government contend that this power is necessary to promote compliance with byelaws we believe that they should explain this and give examples of how this power might be used. We further believe that statutory criteria should limit the exercise of the power and structure judicial discretion to ensure proportionality.”
I will leave that on the table, or suggest that other hon. Members do what I did—look at some byelaws. I wanted Committee members to understand the consequences of what they are passing. These are the byelaws that I came across; I have not selected them on purpose. Warwick district council has “Byelaws for good rule and government and for the prevention of nuisances”. A “musical or noisy instrument” cannot be played near a church. Presumably, if someone contravenes that near a church, the musical instrument can be confiscated. There are byelaws on “Mud, etc, falling from vehicles to the highway”. On dog fouling, the byelaw states:
“No person in charge of a dog shall allow the dog to foul a footway or grass verge”.
We all agree with that, but the power under this clause will allow the dog to be confiscated.

Julian Huppert: I am sorry to spoil the hon. Gentleman’s fun on some of this. I appreciate his concern and how he has expressed it, but he has misinterpreted the clause. It does not say that all existing byelaws have the provisions retrospectively added into them, which I agree would be a rather unusual power. As far as I can tell, it means that byelaws can choose to include this provision. I would be surprised if any council decided to have a byelaw that said that the dog could be confiscated, and I agree that that should be struck down and removed.

Vernon Coaker: The hon. Gentleman may be right, but he is extending the power of seizure and of forfeiture to every local authority in this country. The hon. Gentleman says that they may decide not to use it. I am saying that there is an enabling power tucked away in the Bill. These are the sorts of things that byelaws cover.
Some local authority areas in this country will choose to use these powers. Justice has pointed out the disproportionality of that. I am pointing out that under a clause, tucked away in the miscellaneous provisions at the end of the Bill, is an enabling power, which allows a big increase in the powers available to local authorities to enforce byelaws. That is a big deal.

Stephen McCabe: Does my hon. Friend share my view that the faith of the hon. Member for Cambridge in local authorities may be misplaced? Perhaps that is why his party supports the Protection of Freedoms Bill, and has been so vehement in its opposition to the Regulation of Investigatory Powers Act 2000—because of how local authorities have abused and misused powers that no one anticipated they would have.

Vernon Coaker: That is a very good point, which speaks for itself. We will hear what the hon. Member for Cambridge has to say about it. There are lists and lists of things that are available to local authorities. It may be that a local authority has a problem with the use of motorcycles and other vehicles. Sedgemoor district council has that problem. It has a byelaw, which states:
“These byelaws apply throughout the District of Sedgemoor, unless otherwise indicated.”
On the use of motorcycles and other vehicles, it states:
“‘public pleasure ground’ includes any pleasure ground or open space to which the Council’s pleasure ground byelaws apply, as indicated in the schedule to such byelaws…No person shall ride, drive or operate any motor bicycle or other mechanically propelled vehicle not intended or adapted for use on roads”,
and so on. It gives example after example of byelaws.
I understand the legislation, but it is a weak defence to say that the measure is not retrospective. It is an enabling power that means that once the Bill is enacted, every single local authority in this country can say, “We’ve got a problem. My byelaws are such that under section 139 we can introduce a power to seize that property, because we believe it is causing a nuisance.” That may be the will of Parliament. Other hon. Members may be more assiduous than I am, because I did not spot the problem until a couple of days ago—but there it was, tucked away. I thought, “What on earth does this mean?” It is amazing what we find out when we ask.
In addition, I am not clear who can enforce the powers. We have had a long debate about “authorised persons”. The enforcement concerns byelaws, so does that have to be carried out by a warranted police officer? If a council chooses to use the powers and the enforcement is carried out by one of its authorised officers, such an officer—not a warranted police officer—will have the power to seize motorbikes, dogs, musical equipment, or anything in the prevention of nuisance. I cannot find out whether in such circumstances an authorised officer of the council would be allowed to use reasonable force. I think that the answer will be, “Yes, authorised officers can implement those powers; but no, they cannot use reasonable force.” The Minister will confirm whether that is so.
The point is that, as an enabling power, the provision is a significant extension. In defence of the hon. Member for Cambridge, I should say that it is not retrospective; it is to do with anybody who chooses to use it in future. It is a dramatic change.

Mark Tami: Does my hon. Friend agree that it is odd that the Government should be introducing the Protection of Freedoms Bill, which seeks to take powers away from local authorities, while giving local authorities a massive new power under this measure?

Vernon Coaker: The provision represents a significant extension of power. The Government cannot have it both ways—they say, “We are going to take away all these nasty, intrusive powers that the state makes available to local authorities”, which, as my hon. Friend the Member for Birmingham, Selly Oak has said, they sometimes misuse. The Government give authorities enabling powers with one hand and take them away with the other, because they do not trust them to use them properly. It is all incoherent.

Chris Ruane: Are we on a slippery slope towards local authority sponsored and sanctioned violence?

Vernon Coaker: Perhaps the hon. Member for Cambridge can answer that. I shall leave it there, but it is worth hon. Members’ going through the clause to see what it is about.
My final point concerns a power that will cause a real problem, but which local authorities will be greatly tempted to use. If there is a byelaw about skateboarding causing a problem, local authorities will now be told, “Your authorised officers can confiscate the skateboards.”

Michael Ellis: So what?

Vernon Coaker: The hon. Gentleman may be right to say, “So what?” Perhaps every local authority’s authorised officers should be able to confiscate music equipment, skateboards and dogs that are causing a problem—[ Interruption. ] The byelaws include, “dogs causing a nuisance”. We are giving power to local authorities to confiscate items of property that are causing a problem. If the dog is causing a problem, presumably you can confiscate the dog. Whether that is right or wrong—some people say it is right—all I am saying is that it is a big extension of power to local authorities. I am highlighting it to the Committee so that we can make a judgment as to whether we think it is proportionate or not.

Stephen McCabe: I think that my hon. Friend has stumbled on a simple element of coalition policy. Is it not the case that this is a coalition Government who believe in confiscation as the route to resolving some social difficulties? Those proposals are going to be part of the new antisocial behaviour proposals, so all we are witnessing is an earlier version of the same confiscation strategy.

Christopher Chope: Order. That is long enough, I think.

Vernon Coaker: That is a good point; I think the proposals do carry on that policy. I will finish there, Mr Chope. [Interruption.] The Government Whip shakes his head.
I say again that this is a significant extension of power to local authorities, and to authorised officers of local authorities, in implementing and enforcing byelaws in their areas. That may well be what this Committee thinks is right; it may well be what Parliament considers is right, but we need to have the debate in order to decide whether it is proportionate and reasonable for that extension of powers to be made available to local authorities, should they choose to use it.

James Brokenshire: It has been an interesting and illuminating debate. I will make a few general points, go back to the specifics and come back to some more general points.
It is interesting that the hon. Member for Gedling’s comments have again highlighted this fear of localism—the provisions are not, apparently, about empowering local communities to take responsibility for nuisance and problems in their areas; the hon. Gentleman does not want that. There is the inconsistency as well. His Government were very centralist and very restrictive, and sought to take a very rigid approach. I am still not certain whether he is reneging on that; perhaps he has seen the light. His approach is very interesting.

Julian Huppert: Does the Minister agree that this is about giving power to local councils and local people to make decisions? Under the previous Government, we had to wait several years for the approval of a byelaw to allow control of parking on grass verges in Cambridge. We had been campaigning for that for many years.

James Brokenshire: There is a clear role and responsibility for local authorities to deal with nuisance and problems in their areas. That is a central tenet that we should be looking at in terms of the active community.
I want to give further context on why this provision has direct relevance to Parliament square and to come back on a point that I made to the hon. Member for Gedling this morning about displacement issues. The power of seizure is important for Westminster city council and the Greater London authority in relation to some other areas surrounding Parliament square. Having a right of seizure is important for new byelaws, or amended byelaws that would need to come forward, to ensure that protection. If there is a displacement as a consequence of the provisions in the Bill, clause 148 will be absolutely instrumental in guiding that, and ensuring that the provisions are effective and that the provisions in the Bill and the byelaws interlock.
To reiterate, I should say that the provision relates to new byelaws and amended byelaws. In that context, there is clear oversight over the establishment of any new byelaw. It is something that takes place over many months; there is wide consultation and the council has to consult with and seek authorisation from the Department of Communities and Local Government. There are checks and balances, and human rights issues have to be properly considered at each stage of the process.
The clause is about localism, giving discretion back to communities and sorting out problems in their areas. The approach of the hon. Member for Gedling is illuminating in its inconsistency, but we shall see. We will no doubt be tested on the clause; I hope that he will back localism, but I suspect that he will not.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to.

Clause 148 ordered to stand part of the Bill.

Clause 149 ordered to stand part of the Bill.

Schedule 16

Julian Huppert: I beg to move amendment 3,in schedule 16, page175,line22, leave out ‘two’ and insert ‘four’.

Christopher Chope: With this it will be convenient to discuss the following: amendment 4,in schedule 16, page 175, line 29, at end add
Amendment 5,in schedule 16, page175,line29, at end insert—
Amendment 6,in schedule 16, page175,line29, at end insert—
Amendment 615,in schedule 16, page175,line29, at end insert—

Julian Huppert: We move on to the interesting topic of how one controls drugs that are susceptible to misuse, and we will come on to discuss scientific evidence and the role of the Advisory Council on the Misuse of Drugs. As Members can tell from the small numbers, the amendments were tabled well in advance. In the intervening time, I have had several discussions with the Minister, for which I thank him, and we have seen the publication of the draft protocol. I am pleased to see that there is good progress in the protocol, which will very much help on the concerns that have been raised. Amendment 3 need not detain us, as it is a tidying-up amendment, so I will start by discussing amendments 5 and 6.
Amendment 5 relates to the idea that we will have temporary orders, and we all accept that there is an advantage in having a temporary system. Sometimes there will simply not be sufficient scientific evidence to make a permanent decision, but there will be a sense that action needs to be taken on the basis of preliminary data, and I understand that argument. Amendment 5 would require the Secretary of State to consult the ACMD before deciding whether to make a temporary class drug order. I was extremely concerned about that.
That concern was also raised by Professor Les Iversen in his evidence. In answer to Question 164 he said,
“I would have liked to see that written into the statutory requirements; it is not at the moment.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 95, Q164.]
In reply to Question 161, he similarly said that
“we hope that Ministers would consult us beforehand, but that has not been written into the Act. I am not quite sure why, but it has not been.”––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 93-94, Q161.]
That was the initial setting for my concern, because it would be worrying if Ministers had the freedom to make those decisions as a quick, gut-reaction response to headlines in particular newspapers, such as the Daily Mail. Over many decades, we have seen more than enough such gut reactions that have not been evidence-based or scientifically based.
Having said that, I am delighted to see the draft protocol. I realise that members of the Committee have seen it, but members of the public have not, so they will have to accept some of what we say as read. I have received clarification that it is at least possible to quote from the draft protocol in our discussion, and I am sure that Members will correct me if I stray beyond that. There is a section in the protocol that I find encouraging. It states:
“Advice from the ACMD…is key. It is therefore the full intention of the Government to consult and be advised by the ACMD before a temporary class drug order and make associated amendments to the misuse of drugs regulations.”
I find what the Government are trying to do encouraging, and I take great comfort in that section. However, I would be grateful for the Minister’s comments on why he decided to include it in the memorandum but not in the Bill. Personally, I agree with Les Iversen that it would be preferable to see it in the Bill, and I look forward to the Minister’s comments. In any case, I am grateful to see it in the memorandum.

Stephen McCabe: On a simple point of clarification regarding amendment 4, I wonder why the hon. Gentleman is not satisfied that the Minister could make a decision based on the fact that the
“misuse is having, or is capable of having, harmful effects”.
The amendment would add the words,
“sufficient to constitute a social problem”.
Will he explain the thinking behind the amendment?

Julian Huppert: I will be delighted to. I should have clarified this: the logic of the matter meant it made more sense to speak to the amendments in a different order. I will explain exactly where that wording came from and why it is there.
I am encouraged about the issue addressed in amendment 5. Amendment 6 would require the Secretary of State, if the situation was so serious that she was going to make a temporary order, to ask the ACMD to start doing the longer piece of work that would be required to establish what the sensible rules ought to be and to take scientific and sociological advice to work out whether a drug should be moved on. I do not think any of us would want to see substances sitting on the temporary list for long—it is temporary, and we should either move things off it if it turns out that there are no problems, or move them on to become class A, B or C.
Again, I am encouraged by the protocol, which responds to the problem addressed by the amendment. It states:
“In circumstances where a ‘temporary class drug order’ is laid by the Home Secretary, the Home Secretary will make a formal referral to the ACMD to undertake with immediate effect, a full assessment pursuant under section1(2) of the 1971 Act.”
In both this and the previous case, it goes on to give more detail on how it might work. I am therefore delighted to see the issue of amendment 6 dealt with in the memorandum. Again, I would be grateful if the Minister answered why it is better for it to be in the memorandum but not in the Bill. I am sure that he will be able to comment on that.
The Minister has said that the memorandum will be made available to the public and laid in the Libraries of both Houses, which would be helpful. While I have no concerns about this particular Minister, the question is about what happens if a hypothetical future Minister who is not as enlightened as the current one comes along. How can we be sure that they will not change the memorandum in a way that causes the statutory protections that we would like to see to vanish? I realise that it is difficult for the Minister to conceive of future Ministers who would behave in such an abhorrent way, but I am sure that he will able to comment on that.
I am delighted that amendment 4 was picked up earlier. It is a reference to the original phraseology in the 1971 Act. Section 1 of that Act, which set up the ACMD, states:
“It shall be the duty of the advisory council to keep under review the situation in the United Kingdom with respect to drugs which are being or appear to them likely to be misused and of which the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem”.
The extra words proposed in amendment 4 are in the original Act, and they apply to drugs in the way that the Act was intended. Interestingly, the phraseology in the Bill is almost exactly the same—the punctuation is slightly different; I assume that styles have evolved over the past few decades—but it leaves out the issue of causing a social problem. I am intrigued as to whether this is a serious issue. Is there an understanding of what is meant by “causing a social problem”? The idea that something could be used to cause harm applies to a huge range of things that we see every day. The question is, what is the scale of that harm? Is it sufficiently big that it creates a problem wider than just basic harm? There are many things that we find in everyday use that can be misused and cause harm. [Interruption.] Coffee is the suggestion from behind me. One can explore various other options.
I was intrigued whether the matter had some meaning, so I asked question 175 in our evidence session with Les Iversen. I will read out the exact words, as it makes more sense in context:
“Dr Huppert: And it has real meaning for you?

Les Iversen: Of course, yes.”
Professor Iversen goes on:
“Though it is hard to measure, as you say.” ––[Official Report, Police Reform and Social Responsibility Public Bill Committee, 20 January 2011; c. 97, Q175.]
I accept that there is a real problem in measuring social harm and the social problems that might arise. I can understand it being softened in this case, because there may not be enough evidence and it may be hard to measure. But I hope that we would still say that it should be a temporary order of the sort where we would expect the drug to be capable of causing a social problem. We would still aim at that, even if we had a lower standard of proof, because we simply could not have enough evidence to be absolutely certain.
If that is not the case, there is the theoretical possibility—of course, it is theoretical; I do not have an excellent example—of something that would be valid as a temporary order because it would cause harm, but not actually be capable of being classified under A, B or C because it would not cause harm sufficient to constitute a social problem. I do not want to see anything trapped in this space. Will the Minister explain why those words were left out? Is it his intention for the ACMD to look at that issue to a lower standard of proof, which I think would be a better option?
Lastly, I want to pick up something that would perhaps sit better under the schedule stand part debate, but it will not take long and, hopefully, we will save time later. In evidence to the Committee, the ACMD suggested that it was uncomfortable with the reference on page 179 to various punishments in relation to a class B drug. It made the excellent point that that could be seen to imply that a temporary class drug order meant that the drug was class B, and if it was later categorised as class C, that might be seen as downgrading it. Clearly, that is not the intention. One has to assume a certain level in order to do so. Perhaps the Minister will be prepared to make amendments along the lines suggested by the ACMD and spell it out to avoid any such suggestion.

Clive Efford: I wish to speak to amendment 615, which is a probing amendment. I do not need to repeat the pertinent points made by the hon. Member for Cambridge, who quoted Professor Iversen’s evidence to the Committee. The issue concerns whether the Home Office should consult the advisory council before making a temporary drug order, and whether it should be given a similar status as a permanent drug order. I think the Home Office is required to consult the ACMD before making such an order. We have a statutory instrument before us tomorrow and the explanatory notes state that that is the case.
The measure would provide an important check and balance because, as has been alluded to, public campaigns can become very vocal. Pressure on politicians to respond to those can become very great, and therefore it is important that decisions are not made on the basis of what the latest red top is running a campaign on but on the scientific evidence. If the Government are required to take that scientific evidence before issuing a temporary drug order, an appropriate check and balance would be in place.
I also want to know whether it is the intention of the Government to seek the advice of the ACMD when making a temporary drug order, to assess the implications for its work load. That point was made by Professor Iversen in evidence to us. There should be some consultation about the implications for the ACMD and its capacity to carry out the work placed upon it, not only in relation to temporary drug orders but in relation to adding to its work load. There is, of course, the pressure of a time limit for a response, because the protocol sets out that there will be an agreed time limit between the chair and the Minister to set a time by which the ACMD should respond. Such matters are bound to have implications, so will the Minister say whether such an issue will be taken into consideration?
The hon. Member for Cambridge welcomed the agreements within the protocol but I seek clarification of one section of it. It states that, in those circumstances, the Home Secretary will consult before he makes his assessment, but then:
“In exceptional circumstances, for example, where there is a demonstrably urgent and substantive threat to public safety and/or health, Ministers will discuss the matter with the ACMD Chair before taking any action”.
What are the exceptional circumstances? Do they allude to the possibility that, outside the protocol, the Minister could act before seeking advice? The wording seems to be contradictory in that section. Is there an opportunity when the Government can act outside the protocol? I want some clarification on that point.

James Brokenshire: I thank the hon. Members for Cambridge and for Eltham for their contributions to our debate on the new temporary class drug orders. As they will appreciate, the new schedule is intended to provide further flexibility to respond to new psychoactive substances that might suddenly appear or become available, and the need for the Government in conjunction with the advice they receive to act swiftly when serious public health issues emerge. The lesson that we have learnt during the past 18 months to two years is that the ability to act swiftly, yes, proportionately and yes, reasonably is an important tool that we need to reserve to the Government to ensure that the supply of what are dangerous drugs can be acted on swiftly to protect the public—quite often young people—from harm.
The group of amendments would impose additional conditions that the Secretary of State must satisfy before making a temporary class drug order. Under the existing provisions in schedule 16, the Secretary of State must be satisfied, first, that the drug in question is not already a controlled drug and whether it is class A, B or C, and secondly, that it appears the drug is being or is likely to be misused and that misuse is having or is capable of having harmful effects.
The Committee might be aware that no such or similar conditions are placed on the Secretary of State before laying a draft Order in Council under section 2(5) of the 1971 Act to bring about the permanent control of a drug. The first amendment would extend the existing conditions so that the Secretary of State must also be satisfied that not only is the drugs misuse having or capable of having harmful effects, but the harmful effects are
“sufficient to constitute a social problem”,
as highlighted by the hon. Member for Cambridge. Just as the existing conditions are taken from the terms of reference of the ACMD under section 1(2) of the Misuse of Drugs Act 1971, so is the reference in the amendment to a social problem. The hon. Gentleman explained where the reference came from in that context.
In resisting the amendment, I want to remind the Committee of the underlying rationale for introducing temporary class drug orders. I shall then explain why it is not appropriate in such circumstances. The availability of the order is intended to enable us to take swift action to prevent harm. We are looking to restrict availability by enabling the police and other law enforcement agencies to take action against suppliers, minimise the opportunities for stockpiling and support a public health message. We know that some people equate legal with safe, sadly, and we have seen some issues and tragedies alongside that.
While we will continue to assess the new and emerging psychoactive substances on a case-by-case basis, it has become increasingly clear that, sadly, in many cases they are far from harmless and can have health risks similar to those linked to drugs, such as cocaine and amphetamine. The physical harms are likely to be evidenced by known pharmacology, as well as emerging evidence such as A and E admissions. “Social harms” remains a core element of the ACMD terms of reference, and an integral part of its advice following a full assessment of all the available evidence, often over a number of months, to inform a decision for permanent control under the 1971 Act.
In exercising the power to make temporary class drug orders, the Secretary of State mayhave evidence of “social harms” or be able to make reasonable inference from the properties of the drug in question and the experience of this new drug market. However, the view that we share with the ACMD is that harmful effects sufficient to constitute a social problem are not necessarily in evidence until some time after the first appearance of a drug. In his evidence to the Committee, Professor Iversen said that not only is a “social harm” hard to measure, but it is particularly so in a “short space of time”. However, while the drug remains freely available and could be doing untold harm, we do not intend to wait and see whether that is the case, in order to satisfy a condition of the nature proposed here. That would be a dereliction of the very duty we are seeking to bring to the fore.
In resisting the further amendments that require the Secretary of State to consult with—and in the case of the amendments tabled by Opposition Members, to seek the advice of—the ACMD before laying a temporary class drug order and to have referred to the ACMD for a full assessment of the drug’s harms in order to bring it under permanent control as a class A, B or C drug, I know that hon. Members have made reference to the working protocol that we have developed with the ACMD. I hope that the protocol has been helpful and informative to hon. Members as to how we would seek to operate the provisions of this part of the Bill in conjunction with the ACMD, as well as setting out the relationship as we see it between Government and the advisory council, building on the recommendations that we have received from the Omand Review.
The protocol makes it clear that the Government intend to consult and be advised by the ACMD before laying an order. The ACMD’s advice is likely to be key to enable the Secretary of State to satisfy the conditions about the harmfulness of a drug before invoking a temporary class drug order. The ACMD can also provide advice of its own volition, and based on the experience of the previous Administration in relation to mephedrone and synthetic cannabinoids, it is likely to. In such circumstances, any requirement to consult is redundant if the ACMD has brought the issue to Government in that way. The protocol will be a public document on which the Government should and will be held to account.
I will address the point about exceptional circumstances. It is hard for me to give specifics, but the protocol highlights the ability to consult the chair of the ACMD in exceptional circumstances—for example, if there is a sudden public health issue that we are picking up from A and E departments that many people are presenting with psychosis or other issues linked to drug harm, where it is possible to trace that there is a new psychoactive substance that may be causal, and a pattern of behaviour is being underlined very rapidly, with significant harms. In other words, it is not saying that we should not be seeking advice at all or that we should not consult the ACMD, but that we should be able to speak to the chair. The issue may be so serious, and the harms becoming evident so significant, that to wait for a full council meeting to be scheduled might be a danger to public health. That is why an exceptional process is important.
We are not saying that we would not want to seek advice as we have done in previous cases, but it is understood that there is a need in exceptional circumstances for Ministers to be able to act swiftly to provide protection, while discussing the matter with the ACMD chair, so that the chair is at least given the opportunity to take informal soundings from other council members. We have discussed that with the ACMD, and I attended its council meeting last Monday to talk about the protocol and to listen to the council’s points.
The hon. Member for Cambridge raised the issue of penalties and of any equation between a temporary class drug and a class B drug. We do not seek to suggest that any drug in the temporary class drug orders should be class B, and indeed it might be found that such a drug falls outside the categories altogether, because of evidence or information that comes to light on further analysis. The penalties have been aligned to class B and C penalties on indictment, because we want to send out a strong message to the public, the enforcement agencies and the judiciary that we do not consider the people dealing in these legal highs any less seriously than those dealing in illegal drugs. The measure will not provide a perverse incentive to traffickers to peddle drugs under temporary control, which might prove to be more harmful than those that are already subject to permanent control.
There was a broader point about why there are statutory consultations in the guidance but not in the Bill. There is a need to act swiftly, and if a consultation appeared in the Bill in a restricted way, a legal challenge could arise regarding the nature of that consultation. I appreciate the comments that have been made by members of the Committee and by Professor Iversen about the need for consultation with the ACMD, and I would like to consider whether the language could be framed in such a manner as to give comfort. As the memorandum clearly states, the Government’s intention is to consult and seek advice on the use of the temporary class drug orders in a way that is properly grounded in evidence. I hear the point that has been made by both the hon. Member for Cambridge and Professor Iversen about the fact that we have a good working protocol, but there is certainty and surety to be gained by virtue of putting something in statute. I will consider that further, and reflect on it, but on the basis of the comments that I have made I hope that the hon. Gentleman will withdraw his amendment.

Julian Huppert: I thank the Minister for his comments and for agreeing to look further at some of the issues, and I look forward to the outcome of his deliberations. I am delighted that we have a Government who want to take drug policy evidence seriously. That has shamefully been lacking for many decades, and I am glad to know that it will end.
I hope that the Minister will also look at the phraseology issue with the class B drugs. I absolutely take the point that it is not intended to say that such drugs are class B, but the question is about misinterpretation and the Daily Mail headlines when they are later re-categorised. Nevertheless, having heard many helpful comments from the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clive Efford: I beg to move amendment 616,in schedule 16, page176, line5, after ‘revoke’, insert ‘or extend’.

Christopher Chope: With this it will be convenient to discuss amendment 617,in schedule 16, page176,line6, at end insert—

Clive Efford: These are brief, probing amendments that I do not intend to press to a vote. Amendment 616 is on the extension of an order. Has there been any discussion between the ACMD chair and the Minister about the possibility of having to extend a temporary drug order if the investigations cannot be completed in the agreed time scale? There does not seem to be any provision for that in the Bill. The Minister may say that the Government are confident that a year is ample time. In the evidence of Professor Iversen, there was a reference to the time scale for legislation being passed. He had been advised that it may take up to six months from a temporary order being invoked to the ACMD completing its investigations and legislation being passed. He went on to say that his experience was that legislation had been put in place on a much shorter time scale. He did not hold much with that extension. It is a probing amendment to find out whether there is any necessity in some form of backstop on the time scale and whether some flexibility is allowed. Professor Iversen said he hoped that the time scales would not be too prescriptive and that there would be some flexibility.
I welcome the commitment in the code of conduct to the Secretary of State not pre-judging these issues in advance of receiving advice from the ACMD. In the process by which the drug order is introduced, is there some restriction on the Government in responding to the ACMD if it says, “We think this is a drug that there should be a temporary drug order on”? How do the Government respond in terms of time on something raised by the ACMD? On amendment 617, I have one simple question: if an extension is requested by the ACMD, how will it be dealt with? Why have we settled on one year? What is the advice that has led the Government to decide that the temporary drug order should last a maximum of one year? Has there been some expert advice on that? What is the rationale behind that time scale?

James Brokenshire: In answer to the hon. Gentleman’s last question, the 12-month period was selected following discussions with Professor Iversen and the ACMD on what would be a reasonable period to adopt to allow the breathing space to consider fully whether a temporary order should be made permanent. The clear message that I have telegraphed throughout the consideration of these provisions is that this temporary order should in no way be seen as a means of subverting the normal procedure for considering whether a drug’s classification should be permanent—in other words, the law under the Misuse of Drugs Act 1971. These provisions are specifically for dealing with the issues that we have outlined on newly emerging psychoactive substances that are appropriate to be treated in this manner. The normal course of action would be to seek the ACMD’s consideration of a new drug in the normal way, but with this power reserved to be able to address it. Ensuring that the 12 months are there gives the ACMD the scope and space to do that analysis and assessment on whether the temporary order should become permanent, to lessen some of the pressures that the hon. Gentleman mentioned in the previous debate.
The two amendments make provision for the Secretary of State to extend the temporary class drug order beyond its 12-month period, on the request of the ACMD. As the draft working protocol underlines, where a temporary class drug order is laid, the Home Secretary will make a formal referral to the ACMD to undertake, with immediate effect, a full assessment. We will agree a further timeline commensurate with enabling the Home Secretary to make a decision and, should it be considered appropriate, make a recommendation for permanent and full control to Parliament via the affirmative resolution procedure to approve a draft Order in Council under section 2(2) within 12 months of the temporary order coming into effect.
The ACMD will endeavour to provide its advice on permanent control within sufficient time to enable Parliament to introduce control, if appropriate, in the manner I have just alluded to. Indeed, the hon. Gentleman and I will, no doubt, be considering such an order tomorrow in such a way in a similar Committee Room to this. For our part, we will give due and proper consideration to any reasonable requests for additional research in order to inform the ACMD’s full assessment. We are discussing research and a number of other issues with the ACMD.
Our decision to adopt 12 months has been informed by a number of factors, including those I have already spoken about. First, the provision must be temporary, but sufficient to allow further and fuller consideration about a drug’s harm. Secondly, international models are generally based on a 12-month timeline with no obvious problems. Thirdly, the time frame within which the ACMD has previously provided advice to Government, more particularly relating to so called “legal highs”, from BZP to synthetic cannabinoids to mephedrone and naphyrone, has, to the great credit of the ACMD, generally been about six to nine months. We wanted to ensure that there was some flexibility beyond that—it would not have been right to have gone for the nine months—but keeping it to as fair a window as possible to allow the ACMD to do their work and to advise Government appropriately.
However, we acknowledge that in an exceptional situation, the advice relating to permanent control may not have been either received or actioned before the expiry of the 12-month period. In these circumstances, the Secretary of State may make a further temporary class drug order if the conditions in schedule 16 can still be satisfied. We are clear that this possibility is not a back-door route to permanent control. In keeping with this position, it remains incumbent on the Secretary of State to bring before Parliament a further order and to justify to Parliament the reasons for so doing.
The hon. Gentleman’s amendment seeks to empower the Secretary of State to grant an extension of a temporary class drug order. On the face of the amendment, it appears that the hon. Gentleman is suggesting that this should be an administrative action exercised by the Secretary of State without any reference to Parliament. I suspect that that may not be the intention and I note that this is a probing amendment to draw out the issues, but I suggest to the hon. Gentleman that such an approach is not in keeping with the recognised role of Parliament under the Misuse of Drugs Act 1971, more particularly when introducing, or, in this case, extending the term of, criminal offences.
The hon. Gentleman’s amendment also appears to promote the advisory council to a decision maker in the context of whether a temporary class drug order is extended or not. By placing the Secretary of State under a condition that a further order can only be made at the council’s request, the amendment undermines the relationship set out in the 1971 Act—namely that the ACMD provides advice, Ministers make decisions, but ultimately it is Parliament that decides.
In resisting this amendment, I appreciate the issue that the hon. Gentleman is attempting to highlight here. It is a matter that the Government will look to better address in the joint working protocol with the advisory council. This is still subject to further iteration, taking account, where appropriate, of points raised in Committee and in subsequent consideration by the House and in the other place. I hope that, with the assurances that I have given, the hon. Gentleman will be minded to withdraw his amendments.

Clive Efford: I am grateful to the Minister. He did not refer to any commitment on the Government’s part to respond to the ACMD. If I missed it, then I apologise, but a question struck me when reading through the Bill, and through the protocol in particular. If the ACMD brought a drug about which it had concerns to the attention of the Secretary of State, is there some commitment on the Government’s part, or have they considered what would be an appropriate time scale in which to respond?
I take the Minister’s advice on excluding the House of Commons from an extension to a temporary drugs order, but the reason for the amendment was that if such an extension were sought, the only reason should be to enable the ACMD to complete its investigations.

James Brokenshire: Before the hon. Gentleman sits down, I would point him to paragraph 4(6) of the memorandum, which says that “Ministers will look to provide a decision on all ACMD recommendations and publish a response within three months of receipt.” That is the general approach that we have set out to all advice that we receive, but clearly the circumstances may be such that we may wish to act more swiftly in individual cases. I hope that at least give him an assurance of the ultimate backstop that the Government are working to in terms of the recommendations that we receive from the ACMD.

Clive Efford: I am grateful to the Minister. It is a small point and I will not press it any further, but it was regarding the initial referral from the ACMD in order to initiate a temporary drugs order. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Brokenshire: I beg to move amendment 567,in schedule 16, page176,line6, leave out ‘such’.

Christopher Chope: With this it will be convenient to discuss Government amendments 568 to 573.

James Brokenshire: These are minor and drafting amendments with which I do not need to detain the Committee. They are of a technical nature and therefore I hope that the Committee will be minded to accept them.

Amendment 567 agreed to.

Amendments made: 568,in schedule 16, page176,line7, leave out ‘A temporary class drug order’ and insert ‘An order under this section’.
Amendment 569,in schedule 16, page176,line8, leave out ‘a temporary class drug order’ and insert ‘an order under this section’.
Amendment 570,in schedule 16, page178,line3, leave out ‘the reference in subsections (1) and’ and insert ‘a reference in subsection (1) or’.
Amendment 571,in schedule 16, page178,line4, leave out ‘(in the case of subsection (1)) section 10(2)(i)’ and insert ‘(i)’.
Amendment 572,in schedule 16, page178,line9, leave out ‘(in the case of subsection (1)) section 10(2)(i)’ and insert ‘(as the case may be) (i)’.
Amendment 573,in schedule 16, page179,line19, at end insert—‘In section 37(1) (interpretation), after the definition of “supplying” insert—

Question proposed, That the schedule, as amended, be the Sixteenth schedule to the Bill.

Clive Efford: We welcome the Government’s temporary drug orders; they are needed, but I have one or two questions. First, what is the advice on what constitutes possession under paragraph 6? Under that paragraph, someone can be prosecuted under the Misuse of Drugs Act 1971 for possession of a class B drug if they intend to supply it to someone else. Under a temporary drug order, what advice do police officers follow to determine whether they should take legal action against an individual? Is any guidance or advice provided? Is it similar to the way in which drugs with permanent exclusions are treated? A drug’s classification could be changed to class C, so somebody who has been treated under the temporary drug orders as though they were in possession of a class B drug may feel justifiably aggrieved.
In their evidence to the Committee, Professor Iversen and the ACMD recommended that substances should be referred to the ACMD so that it could consider all the options for control after reflecting on the available evidence. What consideration have the Government given to the possibility of more flexibility in how a drug is classified under a temporary drug order if the ACMD indicates that it may be classified as class C? I apologise if I have misunderstood the ACMD’s evidence, but it seems to suggest that it would be appropriate to have flexibility in relation to the drug orders.
Do the Government intend to keep the science and research group in the Home Office to provide expert advice and a degree of research back-up to the ACMD, so that the Government have the capacity to respond appropriately to its recommendations? I would be grateful if the Minister clarified whether the Government intend to maintain that.
Will the Minister clarify how the matter will be referred to the House? I apologise if I am asking an obvious question, but in what form will Members of Parliament be informed of the Government’s intention to deliver a temporary drug order? Will it be via a statutory instrument or a written statement?

James Brokenshire: On possession with intent to supply, the relevant issues are broadly equivalent to the law on drugs under permanent control, so there is a direct read-across. I add, however, that ACPO will consider the issue in the context of all legal highs and will review its policing guidance on new psychoactive substances, which will be directly relevant to how the provisions will be policed.
I want to clear up the question of the treatment of temporary class drug orders. The point is that, when a new psychoactive substance is identified, it will be brought within the temporary class drug order. That does not make it a class B or class C drug. It is simply the penalties highlighted in the schedule that would apply. As I said during a previous debate, we think that setting the penalties as we have is important in order to send out a clear message about the seriousness of trafficking or seeking to sell such psychoactive substances.
On a general point about legal highs, we are discussing new psychoactive substances, but sadly, in many cases, drugs sold as legal highs turn out on analysis to be neither legal nor safe; they include controlled drugs. We are mindful of that point in our public health messaging on the subject. That is also relevant to the hon. Gentleman’s point about science and research. In our new drugs strategy, the Government have committed to a forensic early warning capability to identify what new psychoactive substances might appear so that we are better alerted. We are considering how the work of the forensic early warning system will lead into broader research on drugs and psychoactive substances that might become problematic. That work is ongoing so that the two will fit together well.
This is an order-making power. It will work by statutory instrument under the negative procedure. It will be presented to Parliament, and if Parliament is not in favour, it can pray against it in the normal way. I hope that that clarifies the hon. Gentleman’s questions about the clause.

Clive Efford: I am grateful to the Minister. I accept that a drug under a temporary drug order is not permanently classified as a class B drug, but the ACMD has suggested that a more flexible approach might be taken to the classification of a temporary drug order. If I am wrong, I am happy to be put right.

James Brokenshire: I wonder whether the hon. Gentleman is taking up a broader point. The ACMD is currently considering new legal highs and psychoactive substances in a broader way, rather than in terms of temporary class drug order controls. It might be referring to the aspect that he is taking on board.

Clive Efford: If I misunderstand, I apologise, but the ACMD said in its evidence that invoking a temporary ban must be appropriate. It went on to say:
“Therefore, we recommend that in referring a substance to the ACMD, you ask the ACMD to consider all options for control on reflection of the available evidence.”
It seems to me that the ACMD is recommending a more flexible approach to the classification of drugs under a temporary control order. What consideration, if any, have the Government given to that?

James Brokenshire: We have drawn up the provisions in close contact with Professor Iversen, the chair of the ACMD, and in discussions with the ACMD and others. They support the measure and recognise that it fills a gap and will be helpful to Government and positive with regard to the ACMD’s consideration of the issues.

Clive Efford: The measures are important. If I am asking stupid questions, I do not apologise. Who knows? We might uncover something.

Question put and agreed to.

Schedule 16 agreed to.

Clause 150

Julian Huppert: I beg to move amendment 2, in clause150, page100,line1,leave out from ‘omit’ to end of line and insert
“paragraph (a) and insert ‘(a) a number of persons comprising at least a third of the membership with wide and recent experience of relevant areas of science or medicine.’”.
We move from the ACMD’s function to proposed changes to its membership. Again, the amendment relates to the concern that drugs policy should be evidence- based. I apologise in advance to Committee members if I slip into the habit of referring to “science” in relation to evidence. I mean criminology, sociology, medicine and so on. I will try not to be too lazy.
Many hon. Members will remember Professor Nutt and the issues that blew up around how evidence was taken—I shall not dwell on those details. The Government’s announcement of the changes in the provision caused a lot of concern for members of the scientific community and others, judging by the number of people who immediately contacted me.
For hon. Members who have not read schedule 1 to the Misuse of Drugs Act 1971, under the current system, the advisory council must have at least 20 members, of whom one must have had wide and recent experience of listed activities including medicine, dentistry, veterinary medicine, pharmacy, the pharmaceutical industry, and chemistry. That is the current statutory requirement.
I absolutely accept the need for change, which is why I do not support the amendments tabled by Opposition Members that have not been selected. At present, there is a real problem, as different expertise is required now that things have moved on. Skills are missing from that list, and there may effectively be a veto, because if one of those members is not available on the committee, the whole process stalls.
The question is how should the situation change? The ACMD protocol contains some positive points:
“The ACMD continues to need to draw on a diverse range of expertise from within its membership—both scientific and expert ‘practitioner’ based—in order to meet its obligations under the 1971 Act”.
That is welcome, and we have discussed its statutory or non-statutory basis. The protocol then lists areas of relevant expertise, such as chemistry, education and information, enforcement, law, medicine and related disciplines, pharmacology, pharmacy, social sciences and the treatment of addiction and other drug-related issues, which is excellent. However, it goes on to become a bit weaker than I would like, because is simply states that it anticipates that
“the ACMD membership will be drawn predominantly”
from those with the listed expertise. How sure are we that that gives sufficient weight to the measure? That question is not directly for the Minister, but he might answer it for the future Minister who will deal with that issue. How sure are we that that covers enough people?
It is interesting to see the response, which has been shared with Committee, to a formal consultation of some interested bodies. Letters were sent by the Home Office chief scientific adviser, Professor Silverman, to the Royal Society, the Royal Society of Medicine, the Academy of Medical Sciences, the British Academy and a series of others. Sadly, that did not include the Royal Society of Chemistry, of which I am a member. That is upsetting, given the important role that chemistry plays in many of these matters. It is true that some of those responses support the proposal.
Other issues, however, have not been touched on. There has been an exchange of letters between Professor Silverman and the Government’s chief scientific adviser, Sir John Beddington, who said:
“I welcome your suggestion of including a stipulation within the revised membership requirements along the lines that appointments should be made on the basis of high level scientific expertise and ability in critical appraisal.”
I cannot see such a phrase anywhere in the draft memorandum—perhaps I have missed it, but if not, I will be interested to hear why Professor Silverman’s suggestion, which was thoroughly supported by Sir John Beddington, did not make it through. The phraseology in the original 1971 Act is also missing.
There are other concerns, which I shall trim in the interests of time, expressed by the Select Committee on Science and Technology. The Royal Pharmaceutical Society made an interesting suggestion that the Council should be appointed by experts—that it should be the role of bodies such as itself to nominate members. Such a measure is interesting because it would provide an extra level of independence.

Julian Huppert: Indeed, I am just trying to find the text from the Medicines Act 1968, from which the stipulation comes. The change was made in 2005 and it replaced the requirement with a broad understanding of members appointed because of their high level of scientific expertise and their ability and critical appraisal. Concerns have been raised by the British Pharmacological Society. These are not vested interests. Such bodies would not be playing a role. It is about the quality of the evidence. Let me finish on that point with the response from Lord Martin Rees of the Royal Society. In a very telling paragraph, he said:
“My concern is less with the quality of advice than with the reception of this advice. If these statutory changes in any way diminish the authority or credibility of the Council, and therefore make it easier for policymakers to obfuscate or ignore its findings, we would be seriously concerned.”
I hope we will not make Lord Rees seriously concerned.
How do we achieve a system that ensures flexibility and specifies a minimum level of expertise from science and medicine? It is to that end that I tabled amendment 2, which uses the language of the original Act and looks for at least a third of the membership to have a background in science or medicine. I hope we can also see expertise in criminology and other areas.
I hope that the Minister will consider that as one possible option, and other options, statutory or non-statutory, to ensure that the memorandum is perhaps stronger in what it requires and that it goes a little further towards some of the concerns that have been mentioned. There is a risk—not with this Minister but with future Ministers—that Ministers may not want to hear evidence that goes against what the red tops and the DailyMail are telling them. There is a risk they will dilute the advice that they get, so that they find it easier to do what they are under pressure to do but which is against the evidence.

Clive Efford: Everyone will be pleased to know that I will not detain the Committee for long. I have little to add to what the hon. Member for Cambridge has said, but I have a couple of brief questions. If there is a dispute between the ACMD and the Home Office about what expertise is needed—[ Interruption. ]

Sitting suspended for a Division in the House.

On resuming—

Clive Efford: I know that everyone is eager to finish business this evening, so I will not go on for long. I have two questions that I know the Minister will deal with swiftly. How do we settle disputes between the ACMD and the Department if there is a difference of opinion about who should be appointed to a post or about what expertise is required?
The protocol suggests a list of areas of expertise as the basis on which the council should be constituted. There is reference to young people over drug rehabilitation and treatment, but there is nothing on understanding their social behaviour in the community. As a helpful suggestion, I think that the Minister should give some consideration to the inclusion of those with great experience of working with young people, who understand the dynamics that lead them into using drugs, how drugs are trafficked around them and their attitudes towards drugs. They might be a helpful voice on the ACMD. I look forward to hearing the Minister’s response.

James Brokenshire: On that last point, the memorandum makes reference to young people in several ways, and we are conscious of the need to ensure that the advice provided by the ACMD includes expertise that covers young people.
I accept and recognise the commitment of my hon. Friend the Member for Cambridge to the role of science, and independent and expert advice on policy making, and no more so than in the field of drugs policy. The Government share that commitment, and it is worth reminding the Committee of the Government’s statement on its new drugs strategy:
“This Government is committed to an evidence-based approach. High quality scientific advice in this complex field is therefore of the utmost importance.”
It goes on to highlight our relationship with the ACMD.
I am grateful for the further opportunity provided by my hon. Friend’s amendment to dispel the allegation that we intend to remove scientists from the ACMD, which could not be further from the truth. As an aside, however, it is fair to say that only one of the six statutory positions might be best described as that of a scientist, as it requires someone with experience of chemistry.
As members of the Committee are aware, our proposal to remove the statutory requirement for members with expertise in the prescribed areas has received support from the ACMD, the Government’s chief scientific adviser Sir John Beddington and the wider science community. The responses to the consultation that the Home Office’s chief scientific adviser and I undertook have been made available to members of the Committee.
We have acknowledged that, in making the amendment to the ACMD’s constitution in clause 150, we must, for reasons of clarity and transparency, state publicly the range of expertise from which the ACMD’s membership should predominantly be drawn. We were pleased that a number of the responses supported the proposal for a non-statutory list of expertise, as did Sir David Omand in his recent review of the ACMD.
My hon. Friend and other members of the Committee should be assured therefore by the draft joint working protocol. The list, which was drawn up with the ACMD, demonstrates that science expertise remains at its core, encompassed by a range of other relevant disciplines. In resisting my hon. Friend’s amendment, I am of the view that the far more expansive commitment that we will give through the published joint working protocol is more than sufficient to assure those who challenge the Government’s commitment to expert advice and the independence of the ACMD, if that is, indeed, the nature of the assertions that have been made by some parties.
Notwithstanding the difficulties that the amendment would create in defining what constitutes scientific expertise, my hon. Friend is seeking to identify positively expertise in science and medicine. However, by placing greater emphasis on that expertise, I suggest in a kindly way that perhaps he might be doing a disservice to other members with expertise who represent other areas on the council. I am thinking particularly of expertise in the social harms of drugs. Such expertise is paramount if we are to enable the ACMD to fulfil its statutory duty as set out under section 1(2) of the 1971 Act. Positively discriminating for areas of expertise in that way would be of less benefit than the list of areas of expertise in the joint protocol from which members are likely to be drawn. That provides balance and depth, so that the ACMD may carry out its statutory duties.
I am also mindful of the issues that would be introduced as a result of the amendment—the ACMD chair, Professor Iversen, touched on that when he gave evidence to the Committee last month. It is not in anyone’s interest, including the public, to expose the ACMD or its advice, the actions that the Government may take in response to that advice and, as appropriate, Parliament’s endorsement of those actions, to speculation or indeed, to challenge to whether at any point a third of the ACMD’s members had
“wide and recent experience of relevant areas of science or medicine”.
I am sure that it is not my hon. Friend’s intention to facilitate such a situation, but none the less that would be an unacceptable if unintended by-product of his amendment.
My hon. Friend said that about some learned societies had made recommendations, and we endeavoured to make them aware of recruitment campaigns to the ACMD and the fact that individuals on the ACMD do not necessarily represent the body to which they are affiliated, but are appointed in the way that has been advertised. A robust process takes place, of which he is aware. I draw the Committee’s attention to the fact that the medicines control advisory body also changed its composition from statutory to non-statutory membership. My hon. Friend referred to the 1968 Act but, again, that highlights how old some of the measures are on the existing list.
Some of the expertise that has been developed with scientific advances underlines the need for a more flexible approach, as well as the need for relevant expertise in ensuring that the Government receive appropriate advice when considering the important issue of drugs. I hope that, on the basis of my comments, that my hon. Friend is minded to withdraw his amendment.

Julian Huppert: I thank the Minister for his comments and for the discussions that I had with him and his officials after the amendments were originally tabled but before the protocol was available. That certainly helped to give me a lot more comfort. I am pleased to hear the Government’s commitment to evidence-based policy, and I look forward to its developing even further. I am particularly pleased about the exchanges in correspondence about the fact that appointments should be made on the basis of high-level scientific expertise, ability and critical appraisal. I am sure that as long as that continues to happen, the ACMD will play a strong and helpful role, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 150 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Jeremy Wright)

Adjourned till Thursday 17 February at Nine o’clock.